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Colbert v. State

Court of Special Appeals of Maryland

July 28, 2016


          Woodward, Wright, Friedman, JJ.


          Friedman, J.

         The sole question in this case is the constitutionality of §16-205.1(c) of the Transportation ("TR") Article of the Maryland Code, which allows a warrantless breath or blood alcohol test of a driver who is (1) "involved in a motor vehicle accident"; that (2) results in "death … or a life threatening injury"; and (3) that law enforcement has "reasonable grounds to believe" that the driver is under the influence of drugs or alcohol. TR §16-205.1(c). If the law is constitutional, then Colbert's conviction stands. If the law is unconstitutional, her conviction must be reversed. Because we find that this law is precisely the kind envisioned by Justice Kennedy in his controlling concurrence to Missouri v. McNeeley, 569 U.S. ___, 133 S.Ct. 1552 (2013), we find that the law is constitutional with respect to breath tests and therefore affirm Colbert's conviction.[1]


         Robin Vera Colbert was driving a grey Nissan along Route 50. She took an exit ramp toward Ritchie Highway but missed and ended up on the Baltimore & Annapolis ("B&A") Bicycle Trail instead. There she struck two cyclists from behind: Katie Pohler and Todd Green. Bystanders called 911 and applied pressure to a bleeding wound to Pohler's neck. Paramedics arrived quickly and summoned helicopters to transport Pohler and Green to Shock Trauma. Later Pohler would be diagnosed as suffering from a broken fibula, ulna, collarbone, shoulder blade, and vertebrae. She also suffered a lacerated carotid artery and a crushed trachea.

         When Officer Eric Trumbauer of the Anne Arundel County Police Department arrived at the scene, Colbert identified herself as the driver of the grey Nissan. Officer Trumbauer smelled alcohol from Colbert, noted that she was slurring her speech and was unable to keep her balance. Officer Trumbauer performed a field sobriety test on Colbert, which she failed. Officer Trumbauer then instructed Corporal Doyle to take Colbert to the Eastern District Police Station for a breath test, which resulted in a reading of .15 blood-alcohol content, well above the legal limit of .08.

         Colbert was charged with eleven criminal counts related to the incident. Colbert moved to suppress the breath test results because they had been obtained without a warrant. After the trial court denied that motion, Colbert proceeded by way of a Not Guilty Agreed Statement of Facts as to two of the counts. She was found guilty of those two counts and the State nolle prossed the remaining counts. The two counts on which Colbert was convicted were merged for sentencing and the trial court sentenced Colbert to three years incarceration with all but eighteen months suspended and five years of supervised probation. This appeal followed.


         The Fourth Amendment to the U.S. Constitution provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const., Amend. IV. Compelled breath and blood alcohol tests are searches and are thus subject to a Fourth Amendment analysis. Schmerber v. California, 384 U.S. 757 (1966). In Schmerber, however, the U.S. Supreme Court affirmed a warrantless blood test of an individual arrested for driving under the influence of alcohol, reasoning that the natural metabolization of alcohol in the bloodstream creates an exigency justifying an exception to the warrant requirement. More recently, courts split on the question of "whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement." McNeely, 569 U.S. at ___, 133 S.Ct. at 1558. In trying to resolve that split, the Supreme Court, as it so often does, fractured, leaving readers to puzzle out the meaning of the various Opinions.

         Justice Sotomayor wrote for a five-judge majority of the Court (Scalia, Kennedy, Ginsburg, Sotomayor, and Kagan, JJ), holding that the metabolization of the alcohol in the bloodstream does not create an automatic exception to the warrant requirement. McNeeley, 569 U.S. at ___, 133 S.Ct. at 1559. Her majority fell apart, however, when she suggested that each case must be considered on its individual facts to determine whether a warrant was required. Justice Kennedy wrote a separate concurrence, in which he took the position that States and local governments may define categories of cases in which warrants are not required:

The repeated insistence in Part III[2] that every case be determined by its own circumstances is correct, of course, as a general proposition; yet it ought not to be interpreted to indicate this question is not susceptible of rules and guidelines that can give important, practical instruction to arresting officers, instruction that in any number of instances would allow a warrantless blood test in order to preserve the critical evidence. States and other governmental entities which enforce the driving laws can adopt rules, procedures, and protocols that meet the requirements of the Fourth Amendment and give helpful guidance to law enforcement officials.

McNeely, 569 U.S. at ___, 133 S.Ct. at 1568-69 (Kennedy, J, concurring). Pursuant to the so-called Marks rule governing the interpretation of plurality opinions, Justice Kennedy's concurrence states the governing rule of decision.[3] Therefore, we read McNeely as holding that state and local governments may develop appropriate per se ...

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